Asnicar v Mondo Consulting Pty Ltd

REASONS FOR DECISION The application 1 This decision concerns complaints made by Lisa Asnicar, the Applicant, of sexual harassment, sex discrimination and constructive dismissal under Sections 22A, 22B, 24 and 25 of the Anti-Discrimination Act 1977 of NSW in respect of Mondo Consulting Pty Ltd (Mondo Consulting), the Respondent. The Respondent denied these allegations. Background 2 On 15 August 2002 Ms Asnicar lodged a complaint with the President of the Anti-Discrimination Board (respectively "the President" and "the Board") alleging that she suffered sexual harassment and discrimination while she was an employee of Mondo Consulting throughout the period 18 February 2002 to 28 March 2002, and that as a result of this, she resigned on or about 28 March 2002. 3 The Applicant was represented by Mr Dean Rutherford of Shanahan Tudhope solicitors, and at the hearing, she was represented by Ms Louise Clegg, counsel. The Respondent was initially represented by Ms Cara Seymour, Dibbs Barker Gosling, then she represented herself, and at the hearing, she was represented by Mr LAH Macinnis, counsel. 4 Ms Asnicar claimed that Mr Michael Floyd, General Manager and a co-employee of Mondo Consulting in the relevant period, sexually harassed her throughout the relevant period. She claimed that Mondo Consulting, as her employer, was vicariously liable for Mr Floyd's alleged sexual harassment, as well as being personally liable for discrimination. 5 Though Ms Asnicar's complaint to the Anti-Discrimination Board was against both Mr Floyd and Mondo Consulting, in the referral of the complaint by the Board to the Administrative Decisions Tribunal (the Tribunal), the employer, the Mondo Consulting, was named as sole Respondent. Mr Michael Floyd was not named by the Board as a Respondent in the complaint though he was called as a witness for Mondo Consulting, since Ms Asnicar and Mr Floyd entered a deed of settlement before the referral of the complaint by the Board. 6 In these reasons we proceed on the basis of the outline of Ms Asnicar's complaints as set out in Complaint Summary of the report of the President, forwarded to the Tribunal by letter dated 20 November 2003. 7 In addition to the oral and written evidence provided by the complainant herself, the complainant relied on the oral and written evidence of Mr Rod Leslie, a co-employee at Mondo Consulting with Ms Asnicar and Mr Michael Floyd at the time of the alleged sexual harassment, and an affidavit of Ms Asnicar's husband, David Asnicar. 8 The Respondent relied on the written and oral evidence of its Managing Director, Ms Simone Allan, as well as written statements by Mr David James Allan, Ms Allan's husband, Mr Peter Barrington Hall, a business advisor of Mondo Consulting, Ms Kathy Fries-Wilson, a consultant engaged by Mondo Consulting to investigate the claims of sexual harassment by Ms Asnicar, and the oral and written evidence of Mr Michael Floyd, and Ms Carmela Altadonna, who were employees of Mondo Consulting at the time of the alleged sexual harassment. Referral of Complaints by President 9 On 20 November 2003, after investigation of the complaints of Ms Asnicar, the President referred the complaint to the Tribunal under s 94(1) of the Act having formed the view that the complaint could not be conciliated. The Report of the investigations carried out in respect of the complaint conducted by the Board (the President's Report) was provided to the Tribunal, and was admitted in full into evidence in the early stages of the Tribunal hearing. Amended Claims 10 On 8 April 2004, the day before the commencement of the hearing, the Applicant filed an 'amended points of claim'. The amendment consisted of the following new claim: '75A. By virtue of matters pleaded above, the Applicant contends she was discriminated against on the grounds of her sex by the Respondent within the meaning of section 24(1)(a) and section 25(2)(c) of the Act because she was constructively dismissed by the Respondent.' 11 At the hearing, the Applicant's counsel, Ms Clegg, submitted that the facts alleged by the Applicant remained the same in the 'amended points of claim', and so the introduction of the new claim 75A did not involve the calling by either party of new evidence and/or witnesses. However, the Respondent's counsel, Mr Macinnis, objected to the new claim 75A being admitted on the grounds of lack of jurisdiction and lack of procedural fairness. 12 After considering the matter and the parties' oral and written submissions, the Tribunal allowed the new claim 75A. The Tribunal found it had jurisdiction since the 'complaint' referred by the Board to the Tribunal was expressly of sexual harassment and/or discrimination, and impliedly, of constructive dismissal. 13 However, the Tribunal ruled that procedural fairness necessitated that the Tribunal grant the Respondent an adjournment if so needed by it to adequately present its defence if the Applicant persisted with the new claim 75A. In fact, due to an extra day of hearing being needed for the evidence as necessitated in the previous claims and response, no special adjournment was necessary. The claims 14 The Applicant's claims of sexual harassment and sex discrimination were made in statements dated 15 August 2002 and 22 November 2002, to the Board, the Applicant's statements of claim dated 17 February 2004 and 8 April 2004 to the Tribunal, and her oral evidence in the hearing on 14 April 2004. Essentially, Ms Asnicar alleged in her claims that Mr Floyd had made certain offensive, sexual comments to her in the course of her working as a personal assistant to him and another consultant, Mr Rod Leslie, at Mondo Consulting, and Mondo Consulting was liable for Mr Floyd's sexual harassment of her, and for sex discrimination when it constructively dismissed her after she complained. 15 In her complaint to the Anti-Discrimination Board, Ms Asnicar claimed as follows: Ms Asnicar had worked as a receptionist/personal assistant at Management Recruiters Pty Limited (Management Recruiters), reporting to Mr Floyd, from 28 August 2000 to January 2002. During this time, Mr Floyd made 'unwelcome' comments of a sexual nature on a number of occasions (including discussing fellow female employees' breasts, and making sexual jokes), and Ms Asnicar informed him she found these comments 'derogatory and unacceptable'. In January 2002, Mr Floyd left Management Recruiters to work for Mondo Consulting as manager. Shortly after commencing at Mondo Consulting, Mr Floyd telephoned Ms Asnicar (and their colleague Mr Leslie) and said there were positions open at Mondo Consulting. Ms Asnicar claimed that she was concerned about Mr Floyd's past conduct, but this was balanced by the fact that for several months before he left Management Recruiters, Mr Floyd had indicated that Management Recruiters were in financial difficulties and would not be operating after mid-2002. In her statement to the Tribunal dated 16 February 2004, Ms Asnicar added the detail that Mr Floyd told her in or about October 2001 that 'There are going to be another round of redundancies in a couple of weeks…Without the income that our team generates the doors wouldn't even be open now…' In fact, Management Consulting is still in operation, but Ms Asnicar claimed that she trusted Mr Floyd's judgement in this matter because he was part of the management team at Management Recruiters. Accordingly, she applied for the job at Mondo Consulting, and on 11 February 2002, she commenced working there, again reporting to Mr Floyd as her supervisor. 16 Ms Asnicar claimed that after one week in her new position, Mr Floyd's remarks were not only general (for example, 'Jessica's flashing her tits at me today', and 'Carmela is a beer swigging slut') but also became personal to her (for example, 'Did you take six shit-hot pills today', 'I am torn between being your big brother and the other end of the scale…you don't realise how attractive you are', and 'You are the focus of my mid-life crisis and if you were single you would be in trouble…because I would not leave you alone'). As well, a 'puppy dog soft toy' was placed on her desk and Ms Asnicar stated that she believed Mr Floyd had placed it there. Also, Ms Asnicar claimed that Mr Floyd made 'derogatory comments' about her husband, and told her that he had visited a beach near her home in a period when he knew her husband was on an overseas business trip. She claimed also that Mr Floyd also regularly called her after business hours, and sent her 'unnecessary and inappropriate text messages after work hours'. Ms Asnicar claimed that she decided to avoid Mr Floyd and 'to limit their work contact as much as possible', for example, by requesting that their regular weekly work meetings take place at her desk, rather than alone in the boardroom or at a local café, but Mr Floyd rejected these suggestions saying they needed a venue where they would not be distracted by telephones and other employees. 17 In her statement to the Tribunal dated 16 February 2004, Ms Asnicar added further instances of Mr Floyd's alleged sexual harassment of her, including: In or around September 2001, Mr Floyd remarked of a fellow employee, 'When Maria wore that "come fuck me" outfit to the Christmas party, I gave her a look and she knew that it got my attention. That's the kind of attention that she was after'; in or around August 2001, he had said his ex-wife 'banged like a dunny door in a cyclone'; and, on about 19 March 2002, he said, 'Did Simone say she had to check she hadn't got vegemite on her "nipple". I think she did, I'm sure she said "nipple"'. She also stated that on 7 March 2002, when Mr Floyd asked her during a meeting at a local café whether there was 'something going on at home' that she wanted to talk to him about, she responded by telling him 'How dare you imply that there is something wrong at home…It was your remark about David that I am upset about. I'm sick of you saying things like that about him. You've gone over the line this time…' At the hearing, Ms Asnicar also claimed, when cross-examined about the soft toy left on her desk, that it held a red satin heart, a detail which she had not mentioned in her previous statements. 18 Ms Asnicar claimed that at Management Recruiters, she voiced her objections to Mr Floyd's remarks, but at Mondo Consulting, she was hesitant to do so because of her fear of losing her position, and because she was not aware of any sexual harassment policy procedures being available in Mondo Consulting. 19 Ms Asnicar stated that on 11 March 2002 she had lunch with Rod Leslie so she could discuss her 'concerns about Mr Floyd's unwelcome comments and behaviour' (statement by Ms Asnicar dated 8 April 2004), and he told her write everything down and tell Ms Allan. Ms Asnicar claims that she and Mr Rod Leslie agreed to meet that evening to continue the conversation. However, when they left work at approximately 5.45pm to do so, Mr Floyd 'saw them and invited himself along for a drink' (ibid). Whilst out that evening, Ms Asnicar had approximately four drinks and 'observed Mr Floyd appeared extremely angry' (ibid). Ms Asnicar left at approximately 7.15pm and on her way home, she decided to call Mr Floyd to find out why he was angry. Mr Floyd said he was angry about her remarks to him the previous Friday about 'his derogatory remarks about her husband [and] made a series of unwelcome comments of a personal and sexual nature which left the Applicant shocked and upset' (ibid). 20 Ms Asnicar claimed that on 12 March 2002, Mr Floyd began sending her 'unnecessary and inappropriate text messages after work hours' (ibid). 21 Ms Asnicar claimed that on 18 March 2002, Mr Floyd telephoned her after work to ask her whether anything was wrong; in 'an attempt to end the conversation' with Mr Floyd, Ms Asnicar replied 'nothing was wrong' (ibid). Ms Asnicar claimed that on 18 March 2004, she wrote Mr Floyd a letter stating that she 'felt extremely uncomfortable about his advances and behaviour and as a result was resigning from the Respondent' (ibid), but she did not send this letter. She then spoke with her husband who suggested she 'talk to someone within the Respondent', but she decided to wait until he returned from overseas (ibid). On 20 March 2002, she and Mr Floyd had their 'regular weekly meeting' (ibid), and though she suggested they have the meeting at her desk, Mr Floyd stated the meeting should take place in the boardroom. The Applicant stated she felt 'extremely uncomfortable' during the meeting but again, when Mr Floyd asked her if anything was wrong, she replied that nothing was wrong (ibid). 22 Ms Asnicar claims that on 21 March 2002, she decided to approach Ms Allan, the managing director of Mondo Consulting to tell her about her concerns. On the evening of 21 March 2002, Ms Asnicar left a voice message on Ms Allan's home telephone. At approximately 9.30pm the same evening, Ms Allan returned her call, and Ms Asnicar informed Ms Allan 'about Mr Floyd's inappropriate behaviour and comments'. 23 Beyond the parties agreeing that Ms Allan stated she would talk with Mr Floyd the following day about the complaint, and she would get an independent person to help with the investigation, the content of this call is a matter in dispute between the parties. Ms Asnicar claimed that Ms Allan stated she would ensure Ms Asnicar didn't have to work with Mr Floyd while the matter was being investigated. However, Ms Allan denied she stated she would ask Mr Floyd to take leave; indeed, she indicated at the hearing that this would have been most improbable, given she had not at that stage heard what Mr Floyd had to say, and also, since Mondo Consulting was a small business (six people including herself), his absence would have been something she would have wanted to avoid. Ms Asnicar alleged that Ms Allan asked if she should take a Dictaphone when she met with Mr Floyd to discuss Ms Asnicar's allegations; in her statements, Ms Allan denied this statement, and at the hearing, Ms Allan stated that she would not have said this since she did not own a Dictaphone. Ms Asnicar claimed (Ms Asnicar's statement dated 8 April 2004), that during the telephone conversation, Ms Allan 'giggled', told her that she had previously noticed Mr Floyd's 'inappropriate' behaviour (such as body language) and mentioned it to other employees at the time; Ms Allan denied these allegations. Ms Aniscar claimed (Ms Asnicar's statement dated 19 July 2002 and oral evidence at the hearing) that in the conversation on 21 March 2002, Ms Allan stated she was ordering a 'HR Manual' for Mondo Consulting'; Ms Allan denied this assertion, though at the hearing, she conceded she may have asked her assistant Ms Blott to get a 'manual'. 24 Ms Asnicar said that on 22 March 2002, Mr Floyd was in the office and since Ms Allan did not speak to Mr Floyd until the afternoon, Ms Asnicar states she 'hid in the women's bathroom for most of the day to avoid Mr Floyd' (Ms Asnicar's statement 16 February 2004). 25 It is agreed between the parties that Ms Allan obtained the services of a human resources consultant, Ms Fries-Wilson, to speak to Ms Asnicar and Mr Floyd. Ms Asnicar spoke with Ms Fries-Wilson on the afternoon of 22 March 2002 but claims she was disturbed at some of Ms Fries-Wilson's responses such as: 'So he didn't touch you?' and 'You need to set up boundaries with Mr Floyd', 'it's a pity [you told your husband about Mr Floyd's conduct]'. Ms Asnicar also claims that she was upset by Ms Fries-Wilson relating to her an incident which happened when she, Ms Fries-Wilson, flirted with a friend of her husband, and the friend then said things which shocked her. Ms Asnicar stated this was given to her by Ms Fries-Wilson as an example of 'Sometimes Lisa we give people the wrong impression with messages that we send them and focusing attention on people can be misinterpreted as flirting' (statement by Ms Asnicar dated 16 February 2004). At the end of the brief meeting, Ms Fries-Wilson suggested to Ms Asnicar she go home because Ms Asnicar was upset, but Ms Asnicar stayed at work because she had jobs to finish, and Ms Fries-Wilson 'did not again suggest or advise [her] to go home' (ibid). Ms Fries-Wilson asked Ms Asnicar to see her for a longer meeting on Monday 25 March 2002. When she returned to work, Mr Floyd walked into the office and the Applicant was upset because she had 'made it abundantly clear to both Ms Allan and Ms Fries-Wilson [that] she felt uncomfortable working with Mr Floyd' (ibid), and Ms Allan had told her she would not have to work with him while the matter was being investigated (ibid). 26 On 25 March 2002, at about 7.45am, she telephoned Ms Allan and left a message she would not be at work that day because she did not want to work with Mr Floyd. A few minutes later, Ms Allan returned her call and Ms Asnicar alleges that amongst other things, Ms Allan said she didn't have time to send her an e-mail to tell her what was Mr Floyd's response because she had a business to run, what Ms Asnicar had gone through 'was not "SH"' because Ms Asnicar did not tell him to stop, and that it was up to Ms Asnicar and Mr Floyd to 'talk about what happened' (ibid). Ms Asnicar said she was 'quite shocked and upset' by Ms Allan's comments and felt her complaint was being 'swept under the carpet and that Ms Allan was more concerned with her company than dealing with' Ms Asnicar's complaint' (ibid). At the hearing, Ms Allan conceded that she may have said she had a business to run, but she denied the remainder of the allegations about that conversation. 27 Later on 25 March 2002, Ms Asnicar telephoned Ms Fries-Wilson and said she would not be attending the meeting arranged for that day, adding that she didn't think the matter could be resolved by her and Mr Floyd talking, that she was 'upset and humiliated' by the way the matter had been 'handled', that Ms Allan had made her feel 'guilty' and as though she should never have raised the matter, and that she felt she had 'no option left but to resign' (ibid). She stated (ibid) that she e-mailed her resignation to Ms Allan that day. It is agreed between the parties that Ms Allan did not receive the e-mail of 25 March 2002; Ms Asnicar stated this is because she had a virus in her computer at the time. 28 Ms Asnicar said (ibid) Ms Allan telephoned her the next day, 26 March 2004, and asked her why she had cancelled her appointment with Ms Fries-Wilson, to which Ms Asnicar responded that she couldn't work with Mr Floyd and that the 'whole mediation process is a waste of time and money'. Ms Asnicar claimed that Ms Allan then said to her that Ms Asnicar needed to talk with Mr Floyd and set up boundaries and 'Mondo hasn't caused this problem, Mondo hasn't done this to you', but rather Mondo had 'done everything we possibly can to assist you with your complaint in a timely fashion'. Ms Allan denied making these statements. Ms Asnicar states (ibid) that also on 26 March 2002, Ms Allan asked her whether she would like to return to work on 28 March when Mr Floyd would be on leave, and Ms Asnicar said she needed to think about it, to which Ms Allan said she would telephone on 27 March 2002 to discuss the complaint and Ms Asnicar returning to work. 29 In her written statements and at the hearing on 15 April 2004, Ms Allan denied making these comments to Ms Asnicar on 26 March 2002. Rather, she said she called at 10am to offer her 'assistance or support and to check how the process of investigation was proceeding', but Ms Asnicar did not answer, and when she called again at 9pm, Ms Asnicar told her she was resigning (Ms Allan's statement filed with the Tribunal on 1 April 2004). However, Ms Allan conceded in the hearing on 15 April 2004, that when she spoke to Ms Asnicar on 26 March 2002, 'It didn't seem like she had absolutely made her mind up she would never come back'. 30 Ms Asnicar claimed that Ms Allan did not telephone her on 27 March, and she did not know whether Mr Floyd would be at work or not, and so she decided to resign (Ms Asnicar's statement dated 16 February 2004). She said (ibid) that on 28 March 2002 she got a call from Ms Allan in which Ms Allan said she was telephoning to find out if she was coming onto work so Ms Asnicar could brief the staff on her project, and could she please resend her resignation e-mail. Ms Allan denied that on 28 March 2002 she did not want Ms Asnicar to return to work other than for one day, but in the hearing on 15 April 2004 she conceded she had said 'I haven't received your resignation e.mail. Can you resend it?' 31 Ms Asnicar claims (ibid) that after leaving Mondo Consulting, she found it 'enormously difficult to work with other men'. She also claimed that after an experience of working as a personal assistant to a man, she was 'very upset', she left the job, and she decided not to seek work as a Personal Assistant. She said that after she left Mondo Consulting, she had only done 'temporary secretarial/receptionist work'. She indicated she had lost confidence, dressed conservatively for work so as not to 'draw attention' to herself, and she was in a 'constant state of anxiousness' for which she at first took some Valium she had left over from a sore shoulder, and then took sleeping tablets. She tendered in the hearing the doctor's record of prescribing sleeping tablets for her. She claimed that subsequently, on the suggestion of her doctor, she saw a counsellor, Ms Aggett, twice, at a cost of $90 each session (ibid), which she felt had helped her, but she said she had discontinued seeing the counsellor because of financial constraints. 32 Ms Allan explained in her evidence at the hearing that she knew Ms Fries-Wilson because at a previous time, they each had worked in human resources at Morgan and Banks. Ms Allan said that she knew Ms Fries-Wilson to be 'well regarded', a human resources consultant and a manager. She indicated in the hearing on 15 April 2004 that she assumed that Ms Fries-Wilson knew something about sexual harassment claims because Ms Fries-Wilson told her she had 'the Act', she had dealt with sexual harassment 'situations' previously, and Ms Allan considered that 'most human resources managers' know of EEO. Ms Allan also said she respected Ms Fries-Wilson's work as a 'transition counsellor' (counselling of executives who had been made redundant), and she was available immediately. Ms Allan stated at the hearing that she felt it was important that the matter be 'mediated that day'. 33 At the hearing on 15 April 2004, Ms Allan conceded that Ms Fries-Wilson had told her that she 'didn't have extensive experience' in the equal opportunity area, and when Ms Clegg put to Ms Allan that Ms Fries-Wilson was not an expert in mediation, Ms Allan responded that she didn't know that 'at the time', and that she herself had responded to the situation as best she could. Findings of Fact Ms Asnicar's Contract of Employment with Mondo Consulting 34 It is agreed that Ms Asnicar commenced work at Mondo Consulting on 11 February 2002 pursuant to parties signing a contract of employment dated 8 February 2002 which stipulated, under the heading 'Offer of Employment', that what was offered by Mondo Consulting was 'a contract role for a period of three months and then reviewed by the parties' with a start date of 'Monday, 11 February 2002'. 35 However, it is clear that that the parties were in dispute as to whether Ms Asnicar's employment was guaranteed to continue after the expiry of the three-month term. 36 At the hearing, Ms Asnicar said in evidence that she did not know the contract was only for three months until the day she started work, that is, Monday, 11 February 2002. Ms Allan denied this, stating that the contract was given to Ms Asnicar before the commencement date. However, Ms Allan conceded that she could not recall whether the contract had been hand delivered or couriered to Ms Asnicar. The Tribunal notes that the contract is dated 8 February 2002, the Friday prior to the Monday on which Ms Asnicar commenced work at Mondo Consulting. The Tribunal also notes Ms Allan's evidence that after interviewing Ms Asnicar, she decided unilaterally on offering Ms Asnicar a three month contract period, after discussing the matter with Ms Blott, her personal assistant, and concluding that Ms Asnicar may not find the role challenging enough to remain with the company. After considering the evidence, the Tribunal accepts as credible Ms Asnicar's evidence that she did not know until she commenced work at Mondo Consulting on 11 February 2002 that the contract stipulated it was only for a three month period. 37 Ms Asnicar stated that despite the three month contract which she signed, her contract was not for three months but for longer, because Ms Allan orally had guaranteed to her before she commenced at Mondo Consulting that her employment would continue after the three-month contract expired, since that the company was intending to move to new premises and to expand its activities. Ms Allan denied that she had guaranteed work past the three months. She said she did not guarantee work past three months because she was concerned that Ms Asnicar would not find the job offered challenging enough, though at the hearing she conceded that she had hopes of business expansion and hopes that Ms Asnicar would remain in her employment beyond the initial, contract period. Mr Floyd's evidence on this point was unhelpful since he stated at the hearing that he understood that the contract offered to Ms Asnicar by Mondo Consulting was a three-month contract, but he also said that he did not expect Ms Asnicar's employment would be terminated after three months. 38 After considering the evidence, the Tribunal accepts that when Ms Asnicar signed the contract, she was under the impression, gained from Ms Allan, that her position could, and probably would, continue past the three months contract offered. However, the issue for the Tribunal is whether the contract was expressly for a term longer than three months, and/or, whether, as Ms Asnicar claimed, the written contract was subject to an oral condition or a collateral oral contract guaranteeing employment after three months. 39 The Tribunal has considered whether the express terms of the written contract include a guarantee that the contract will continue past the three month stipulated term of the contract. The Tribunal notes that while the contract is stated to be for three months, it also states that it is subject to review after three months, and provides for contingencies if the contract is continued after the three months. For example, it states: 'Your base salary will be subject to review on the anniversary of your commencement date'; 'You will be entitled to 4 weeks paid holiday for each year of service'; 'After the first three months of employment, you will be entitled to a maximum of 5 days sick leave during the first year of employment and 8 days sick leave during each subsequent year of employment'; and it states, 'We look forward to … a long and mutually rewarding relationship between yourself and Mondo Consulting Pty Ltd'. After considering these express written terms, the Tribunal finds that these terms provide for the situation where the contract might continue. However, they do not amount to a guarantee that the contract will continue past the three month stipulated term of the contract. Rather, the written contract is for three months, and any longer term is conditional on satisfactory review by each party at the end of the three-month contract period. 40 The Tribunal has considered whether the written contract was subject to an oral term or collateral oral contract guaranteeing employment past the three months. The Tribunal notes that where a contract is in writing, and the writing appears to contain the whole contract, as the contract of employment for Ms Asnicar appears to do, under the parol evidence rule, in general, it is presumed that the writing contains all the terms of the contract, and that no oral term overrides the written contract: Latimer, P, Australian Business Law, CCH Australia Ltd, 2001, p 384. The Tribunal also notes that both Ms Allan and Ms Asnicar spoke of any continuance of Ms Asnicar's contract past the three months of the written contract as being dependent on uncertain factors such as the anticipated expansion of the business. 41 After considering all the evidence, the Tribunal finds that the contract of employment between Ms Asnicar and Mondo Consulting was not subject to an express term in the contract, nor subject to an oral condition or collateral oral contract made before or when the contract was entered, guaranteeing continuance of employment after three months. 42 After considering all the evidence as to the contract between Ms Asnicar and Mondo Consulting, the Tribunal finds that the contract of employment between Ms Asnicar and Mondo Consulting was for three months only, and that this was accepted by Ms Asnicar when she signed, and proceeded to perform, the contract of employment with Mondo Consulting. Mondo Consulting's reaction to the complaint by Ms Asnicar 43 The Tribunal notes that it is agreed between the parties that when Ms Asnicar worked at Mondo Consulting, Mondo Consulting did not have a sexual harassment policy in place. 44 The Tribunal notes that subsequent to the sexual harassment complaint made by Ms Asnicar to Ms Simone Allan, Ms Allan attempted to investigate the matter, and engaged a consultant, Ms Karen Fries-Wilson, to investigate or mediate the dispute. Subsequent to Ms Asnicar's leaving the company, Ms Allan developed a policy and instituted some basic training; at the hearing on 14 April 2004, Ms Allan stated she drafted the policy herself and she gave the training herself consisting of 'nearly an hour'. 45 The Tribunal notes that there is considerable divergence between the evidence of Ms Allan and Ms Asnicar on the issue of whether or not Ms Allan took Ms Asnicar's complaint seriously. Ms Asnicar alleged in her oral and written statements that when she initially broached the topic with Ms Allan in the telephone conversation of 21 March 2002, Ms Allan promised swift action, and undertook that Ms Asnicar would not have to work with Mr Floyd until the matter was resolved. However, Ms Asnicar also said that in the telephone conversation on 21 March 2002, Ms Allan 'giggled', and joked as to whether she should have a Dictaphone or a witness present when she met with Mr Floyd to discuss the complaint. Ms Asnicar also gave evidence that subsequently, she felt her complaints were not being taken seriously, including because Ms Allan told her on the telephone that she didn't have time to send an e-mail as to what Mr Floyd had said to her because she had a business to run, that she was annoyed, it was up to Mr Floyd and Ms Asnicar to talk about happened, it was a costly, disruptive exercise, and what Ms Asnicar had gone through was not 'SH'. 46 Ms Allan denied that she had giggled, and denied she said should she take someone with her to the meeting with Mr Floyd, and that it was costly, disruptive, and annoying given she had a business to run, and she denied also that she had told Ms Asnicar that Ms Asnicar had not experienced sexual harassment. Ms Allan's husband, who was not called as a witness, stated in his statement dated 30 March 2004, that while Ms Allan was on the telephone to Ms Asnicar on 21 March [2002], he was clearing up so he 'did not hear the contents of most of the call', but he did 'hear parts of the discussion', and recalled saying to his wife that the call 'must have been very serious'. Mr Peter Barrington Hall (who Ms Allan stated was a business advisor to Mondo Consulting), stated in his statement dated 29 March 2004, that 'in the final week of March, 2002', Ms Allan contacted him and sought his advice regarding allegations made by a staff member against Michael Floyd (G.M.)'. He further stated that he advised her 'to act promptly but without reducing her position and to obtain information from all relevant parties', and suggested she 'secure assistance where required to help in mediating between the parties', and they 'discussed the importance of timely and appropriate support for all parties'. 47 As to Ms Allan's subsequent conduct, the Tribunal notes that in the hearing, Ms Allan conceded that she did feel (though she maintained she did not say) she had a business to run, and the exercise was costly. 48 As to the issue of whether Ms Allan giggled, the Tribunal notes that the relevant conversation on 21 March 2002 was by telephone, and therefore more limited information was available to Ms Asnicar to determine Ms Allan's demeanour than if the conversation had taken place face to face. The Tribunal also notes Mr Allan's statement that his impression was that the conversation was serious. After considering all the evidence as to the telephone call on 21 March 2002, the Tribunal has given Ms Allan the benefit of the doubt and accepts as credible her evidence that she did not giggle during this conversation. 49 However, as to the content of the telephone call on 21 March 2002, after considering all the evidence, the Tribunal prefers the evidence of Ms Asnicar as to what was said, subject only to not accepting Ms Asnicar's evidence that on 21 March 2002, Ms Allan initially 'giggled' or made light of the matter. 50 Further, as to Mondo Consulting's subsequent reaction to Ms Asnicar's complaint made on 21 March 2002, the Tribunal finds that when the details of the allegations emerged, Ms Allan did not have sufficient knowledge of the relevant legislation, nor access to expert advice in this area, to recognise that it fell within the ambit of sexual harassment. The Tribunal finds that on the balance of probabilities, subsequent to her initial serious response, Ms Allan was inappropriately dismissive of Ms Asnicar's complaint, and conveyed her dismissiveness to Ms Asnicar. The content of the interviews held by Ms Fries-Wilson 51 The Tribunal notes that Ms Fries-Wilson was not called upon by the Respondent to give evidence, despite the Tribunal suggesting that this would be useful, and Ms Clegg asking that Ms Fries-Wilson be called as a witness. 52 The Tribunal notes that though the record by Ms Fries-Wilson of the interview with Mr Floyd, states that the interview took place on 26 March 2002, the record was not signed until 30 March 2002. The Tribunal notes also that the record of the meeting with Ms Asnicar states that the interview with Ms Asnicar was held on 22 March 2002, but it was not signed by Ms Fries-Wilson until 30 April 2004. 53 The Tribunal notes that the written record by Ms Fries-Wilson of her meetings with Ms Asnicar and with Mr Floyd, do not purport on their face to be comprehensive, but rather, are headed 'notes'. 54 The Tribunal also notes that Mr Floyd said the meeting with Ms Fries-Wilson 'was for a couple of hours', and Ms Fries-Wilson's record of her interview with Mr Floyd appears to be too short to be a complete transcript of everything said over a two hour period. 55 In the hearing, Mr Floyd said that Ms Fries-Wilson's record of the interview was accurate, but incomplete. Mr Floyd said that though it was not in Ms Fries-Wilson's record, Ms Fries-Wilson said to him that on what he had told her, 'by strict definition of the law', because Ms Asnicar had not said his conduct was 'unwelcome' to her, his conduct did not appear to constitute sexual harassment. 56 Ms Asnicar also alleged (statement dated 16 February 2004 and oral evidence in the hearing) that the record of Ms Fries-Wilson was not complete. Rather, she said that Ms Fries-Wilson had added comments such as Ms Asnicar was 'very attractive', that it was 'almost a pity' Ms Asnicar had told her husband of Mr Floyd's comments, and that Ms Fries-Wilson herself had experienced sexual harassment subsequent to flirting with her husband's friend to exemplify that sometimes 'we give the wrong impression with messages we send'. 57 After considering all the evidence, the Tribunal accepts as credible the evidence of Mr Floyd and Ms Asnicar that the notes by Ms Fries-Wilson of their respective meetings with Ms Asnicar are not comprehensive and that the other comments outlined in paragraph 57 and 58 above alleged by Mr Floyd and by Ms Asnicar to have been made by Ms Fries-Wilson, were in fact made by Ms Fries-Wilson, even though these comments were not included in Ms Fries-Wilson's written record of her respective meetings with Mr Floyd and Ms Asnicar. The Credibility of Ms Asnicar's claims as to what was said to her by Mr Floyd and Ms Allan 58 Ms Asnicar has made allegations of comments made by Ms Allan and Mr Floyd which they respectively deny making and Ms Allan and Mr Floyd have called into question Ms Asnicar's character, which Ms Asnicar rejected in the hearing. 59 Whether or not Mr Floyd made the alleged statements goes to the heart of the Applicant's claim. Ms Asnicar stated that Mr Floyd had made various statements to her which amounted to sexual harassment, and Mr Floyd either denied making these statements or denied that when he made the statements, the comments had anything other than a professional meaning. For example, Ms Asnicar stated that Mr Floyd said to her, 'You are the focus of my mid-life crisis and if you were single you would be in trouble …because…I would not leave you alone'. However, Mr Floyd denied saying this, stating rather that he said that 'Mondo Consulting was going through its 'mid-life crisis', and he needed her for her expertise to help him, as general manager, to get the business through 'a difficult time ahead'. 60 Also relevant is the issue of whether or not the alleged statements by Mr Floyd, if made, were unwelcome to Ms Asnicar. 61 Ms Asnicar presented in her evidence as a young, married, relatively conservative young woman of 31 years old. However, Ms Allan indicated in her evidence that Ms Asnicar had a drinking problem: Ms Allan's statement, undated, filed with the Tribunal on 1 April 2004, and the letter dated 3 May 2004 from Dibbs Barker Gosling to the Applicant's solicitors, Shanahan Tudhope, in which Ms Allan's solicitors state that 'Ms Allan is aware that Ms Asnicar has her own personal problems…Specifically, Ms Allan is aware that Ms Asnicar has had a problem with drinking'. Ms Allan also indicated that Ms Asnicar may have encouraged Mr Floyd; she claimed that Ms Asnicar telephoned her on 22 March 2002 and said that she, Ms Asnicar, may have 'antagonised' Mr Floyd by asking him 'whether he thought I had large breasts': Ms Allan's statement, undated, filed with the Tribunal on 1 April 2004. 62 Mr Floyd indicated that no reasonable person could have known that Ms Asnicar found any sexual remarks made by him to be offensive, since she was known to him as a person who generated comments about sexuality (including her own), participated in sexual jokes, and had a drinking problem, and he implied she was promiscuous: Mr Floyd stated (response, undated, at pp 53-65 of the Board's report) that while he admitted that 'there certainly [was] …mention of fellow female employees breasts, comments about sexual intercourse and some jokes but these were not directed by me to her, but were part of a general open discussion by all fellow employees who were part of the group'. He also denied (ibid) that Ms Asnicar informed him that she found these remarks unacceptable. He stated (ibid) that Ms Asnicar was 'the instigator of many group conversations and related to other fellow employees details involving …her travelling experiences of "sleeping with" a number of people in order to obtain or in "reward" for meals and/or drinks that may have been purchased for her…severe cases of intoxication…a large number of instances where she disrobed within a large group of people to swim or enter spas and/or swimming pools during, parties... [and other such instances]'. 63 The Tribunal further notes the Respondent's argument that Ms Asnicar would not have followed Mr Floyd to his new workplace at Mondo Consulting if she was aware, as she consistently stated she was aware, of his sexually offensive, to her, comments made by him (and admitted as made by him: p54, President's report) at Management Recruiters. 64 Ms Asnicar denied that she had a drinking problem, and/or a promiscuous past, and/or that she related her personal sex life to office colleagues. As to why she followed Mr Floyd to Mondo Consulting if she had found his behaviour at Management Recruiters to be offensive, she said that she followed him to Mondo Consulting because first, she needed a job (given she felt insecure, following Mr Floyd's remarks about redundancies at Management Recruiters, that her job would continue). Secondly, she claimed that his conduct towards her only became absolutely unacceptable at Mondo Consulting, since at Management Recruiters, unlike subsequently at Mondo Consulting, Mr Floyd never directed his remarks to her directly, Management Recruiters was a bigger company, and Management Recruiters, unlike Mondo Consulting, had a written, widely disseminated, sexual harassment policy in place and reminded staff of this. 65 As to Ms Asnicar's credibility, the Tribunal notes that in general, Ms Asnicar has been consistent in her claims as to what occurred between her and Mr Floyd in March 2002, her complaints, the handling of the complaint by Ms Allan and Ms Fries-Wilson, and her reaction to this, including under cross-examination by Mr Macinnis in the hearing. 66 The Tribunal notes that when Ms Asnicar was asked in the hearing by Mr Macinnis in cross-examination whether she was paid all her entitlements when she left Mondo Consulting, initially, she replied she had not, and then she conceded that she may have been incorrect in this evidence. However, the Tribunal does not accept that this concession was such as to damage Ms Asnicar's credibility as to her sexual harassment claims, especially since it was clear from her previous statements (for example, statement para 12, p 69, President's report) that Ms Asnicar was not asserting in her claims that she was not paid all her entitlements until the day she resigned. 67 Ms Asnicar stated for the first time in the hearing that the toy dog she thought was left on her desk by Mr Floyd had a red satin heart in its mouth, and Mr Macinnis submitted that this must be a confabulation to make the leaving of the toy dog a sexual act since Ms Asnicar had never mentioned the red satin heart before. The Tribunal notes that it is unusual that Ms Asnicar left out such an obvious detail about the toy dog if it is true. Nevertheless, the Tribunal notes that Mr Floyd conceded that he had left a toy dog on Ms Asnicar's desk, and when asked in the hearing on 10 May 2004 about whether this dog had a red satin heart in its mouth, Mr Floyd said he couldn't remember whether it had a red heart, rather than denying it did. After considering the evidence, the Tribunal gives the benefit of the doubt to the Applicant and finds that her omission to mention the red satin heart previously does not mean this detail is not correct and/or is a confabulation. 68 The Tribunal notes that Ms Allan alleged in her statement undated, but filed on 1 April 2004, that when she checked with Management Recruiters, they had 'no record of any unwelcome comments of a sexual nature made to Ms Asnicar by Mr Floyd on file'. The Tribunal notes that no direct evidence was called from Mr Suttle to corroborate this statement, but that in any case, Ms Asnicar never claimed to have filed an official complaint at Management Recruiters, and so the Tribunal places little weight on this claim by Ms Allan. 69 The Tribunal notes the evidence of Mr Asnicar in the hearing as to the impetus for the move to Queensland being a job offer to him. The Tribunal notes that this substantially diluted Ms Asnicar's evidence which indicated that the move to Queensland was because of the stress of the sexual harassment. After considering the evidence, the Tribunal finds that Ms Asnicar's claim to have moved to Queensland because of the sexual harassment was exaggerated. 70 Mr Leslie gave evidence for Ms Asnicar, supporting her claims in his statement undated, filed 17 February 2004. Mr Leslie stated (ibid) that whereas Management Recruiters was a 'tightly supervised' workplace of '30 to 40 employees', at Mondo Consulting, Ms Allan's 'loose supervision of the employees within the company seemed to act as a sort of 'green light' for Mr Floyd' and it 'became apparent' to Mr Leslie 'that Mr Floyd was giving Ms Asnicar unwanted and non work related attention'. Mr Leslie gave (ibid) alleged instances of Mr Floyd's comments which were the same instances as Ms Asnicar gave of Mr Floyd's alleged office conduct, including stating Mr Floyd had made statements such as Ms Allan saying she had Vegemite on her nipple, when she had actually said she had Vegemite on her blouse. He stated (ibid) that Ms Asnicar had expressed her concerns about Mr Floyd's conduct to him, they had lunch to discuss the matter, and when they were going to continue the discussion that evening, Mr Floyd invited himself along. Mr Leslie also commented (ibid) on Ms Allan's reaction to Ms Asnicar's complaint, stating that Ms Allan said, inter alia, 'This is just a nightmare', 'Í have better things to do', 'I had noticed a few strange things at work such as comments etc, but it wasn't until Lisa told me the whole story that I realised the full extent of it', and that Ms Fries-Wilson had told Ms Allan not to force Mr Floyd to take leave since this could be seen as taking sides. He also stated (ibid) that, 'On 28 March 2002, I heard Ms Allan on the telephone, then heard her curse out loud for the whole office to hear: "Lisa's just prepared an 8 or 10 page document about what's happened. She's just nuts. She's gone nuts'. Ms Allan then got up and stormed out of the office… On 4 April 2002 Ms Allan started ranting at the top of her voice so everyone in the office could hear: "I just want all this to go away so we can go back to work. This whole thing is costing me so much money and it's affecting the whole business. It's just ridiculous"'. 71 In her points of defence (undated, filed 1 April 2004, para 22), Ms Allan stated that any statements made by Mr Leslie 'should be regarded as potentially questionable and unreliable evidence', since he 'was asked for his resignation, within less than 2 months of him joining Mondo Consulting, on the basis of lying to Mrs Allan about his whereabouts'. 72 Given the allegation that Mr Leslie's evidence was unreliable, much of his testimony at the hearing was focussed on whether he left Mondo Consulting because he resigned by reason of his dissatisfaction of the job offered by Mondo Consulting, or whether he was asked by Ms Allan to resign subsequent to his lying about the reason for his absence from the office during working hours. After considering the evidence, the Tribunal considers that Mr Leslie may genuinely have wanted to resign from Mondo Consulting. However, as to whether he was truthful to Ms Allan about his whereabouts when questioned by her as to his absence in working hours, after considering the evidence of Ms Allan, Mr Leslie and Ms Altadonna (who 'stated she had heard Ms Allan's replies when Ms Allan allegedly telephoned the office of the client Mr Leslie had said he was with in his absence), the Tribunal prefers Ms Allan's evidence that Mr Leslie prevaricated to her about his whereabouts. 73 The Tribunal notes that when a witness is unreliable in their evidence on one point, in the absence of a satisfactory explanation for the unreliable evidence, this may make the Tribunal cautious about the rest of their evidence. Nevertheless, the Tribunal accepts that one untruth does not necessarily mean the witness lacks credibility as to other matters. 74 As to the evidence of Mr Leslie as to his observations of Ms Asnicar and Mr Floyd at Management Recruiters and at Mondo Consulting, the lunch between himself and Ms Asnicar to discuss her concerns about Mr Floyd, and Mr Floyd inviting himself to drinks with Ms Asnicar and Mr Leslie, the Tribunal notes that Mr Leslie's evidence as to events is consistent with Ms Asnicar's account of events. As to his conversation with Ms Allan about Ms Asnicar's complaint, the Tribunal notes that the handwritten notes by Ms Allan's solicitor of a conversation between Ms Allan's solicitor and Ms Allan on 24 April 2002 (Exhibit G) appear to be consistent with Mr Leslie's evidence that he observed that Mr Floyd's conduct towards Ms Asnicar changed when they worked together at Mondo Consulting, since the notes state 'Rod also stated "talking out of hand" - Not done at MRA'. 75 As to Mr Leslie's claim that Mr Floyd had said to him that Ms Allan had asked Mr Floyd to ask Mr Leslie if Mr Leslie was 'having an affair with Lisa', the Tribunal notes that Ms Allan and Mr Floyd denied this. The Tribunal notes that the evidence of Ms Asnicar and Mr Leslie indicates they had a close relationship, and that Ms Asnicar confided in Mr Leslie (she states she went to him first when she became troubled about Mr Floyd's behaviour at Mondo Consulting: para 29, statement Lisa Asnicar, dated 16 February 2004). Mr Leslie appears to have kept a watching brief on Ms Asnicar. For example, he states he noticed when Mr Floyd began 'giving Ms Asnicar unwanted and non work related attention' about one month before Ms Asnicar mentioned to him she was concerned: para 14, statement of Mr Leslie undated but filed with the Tribunal 17 February 2004. The Tribunal also notes the handwritten notes of a conversation between the solicitor and Ms Allan on 24 April 2002 state 'Tina Taylor thought something going on between Rod & Lisa. Maybe meeting Lisa…Always going out for coffee together. A lot of e-mails Lisa to Rod. - LOOK AT THEM'. After considering the evidence, the Tribunal prefers the evidence of Mr Leslie on this point to that of Mr Floyd, and finds, on the balance of probabilities, that Mr Floyd did say to Mr Leslie that Ms Allan had asked him to ask Mr Leslie whether he and Ms Asnicar were 'having an affair'. 76 As to Mr Leslie's claim that Ms Allan 'cursed' and shouted in the office about Ms Asnicar, the Tribunal notes that Ms Altadonna's evidence in the hearing indicated that Ms Allan did indeed 'curse' and shout in the office from time to time. 77 The Tribunal was not impressed in general with Mr Leslie's credibility as a witness in his evidence as to the circumstances which led to his resignation from Mondo Consulting. Nevertheless, after considering all the evidence, on the balance of probability, the Tribunal accepts as plausible and credible his evidence as to his observations of Ms Asnicar and Mr Floyd, his conversations with Ms Asnicar about this, and his conversations with Ms Allan and Mr Floyd about these observations. 78 As to Ms Allan's evidence, the Tribunal notes that Ms Allan impressed the Tribunal as earnest. However, the Tribunal also notes that Ms Allan made concessions under cross-examination as to matters of substance. In contrast to her evidence in her statement dated 23 September 2002, in the hearing, Ms Allan conceded that she did consider the sexual harassment allegations made by Ms Asnicar to be time consuming and costly, and that while she did her best to manage the complaint, maybe she could have done better (for example, by having not had Mr Floyd working in proximity to Ms Asnicar until the matter had been resolved). The Tribunal also notes that Ms Allan's denial that she had lost her temper at any time was put in doubt by Ms Altadonna's evidence that at times, Ms Allan had been known to her to shout and curse. 79 The Tribunal notes that Ms Allan did not mention Ms Asnicar telling her that she asked Mr Floyd whether her breasts were too large (the breasts remark) before the statement filed on 1 April 2004. Mr Floyd did not mention this remark being made to him at all by Ms Asnicar in any of his written statements. The Tribunal finds that if this statement was made by Ms Asnicar to Ms Allan (of a remark by her to Mr Floyd), it is implausible it would have been omitted by Ms Allan until 1 April 2004, and omitted completely from Mr Floyd's statements, especially given the nature of the extreme behaviour he alleges of Ms Asnicar and his denial that she indicated to him at any time that his sexual remarks, such as he admits, were unwelcome. 80 The Tribunal further notes that Ms Allan's evidence as to the development of a sexual harassment policy within Mondo Consulting was unconvincing. In the hearing, Ms Allan and Mr Floyd each gave evidence that before and independent of Ms Asnicar's resignation, they had discussed the development of a sexual harassment policy. However, while Ms Allan indicated in the hearing that development of a sexual harassment policy was part of what Mr Floyd was supposed to do, Mr Floyd stated that he had agreed to develop some policies (IT and privacy policies), but Ms Allan was going to develop the sexual harassment policy. As well, while Ms Allan and Mr Floyd each stated they had specifically discussed putting in place an EEO policy, when Ms Allan was asked 'Did you directly ask [Mr Floyd] to set up EEO policy?', Ms Allan responded 'Not directly'. After considering the inconsistency in the evidence as to the development of a sexual harassment policy before the Applicant's complaint, the Tribunal finds that the evidence of Mr Floyd and Ms Allan as to their developing such a policy before the complaint was made was not credible. 81 The Tribunal also notes that Mr Floyd was inconsistent in his response to whether or not he had been instrumental in Ms Asnicar joining Mondo Consulting. Initially, Mr Floyd stated (page 55 President's report) he did not contact Ms Asnicar and inform her that there was a personal assistant position available at Mondo Consulting. At the hearing first he stated that Ms Asnicar approached him about a job, and then he stated he spoke to Ms Allan and then to Ms Asnicar. The Tribunal found Mr Floyd's evidence on this point to be unconvincing and prefers the evidence given by Ms Asnicar and Ms Allan on this point, that is, that Mr Floyd was instrumental in affecting the move of Ms Asnicar (and Mr Leslie) to Mondo Consulting. 82 As to the nature of his after hours contact with Ms Asnicar, Mr Floyd agreed that he contacted Ms Asnicar after work. He stated that the contact was always about work, but then he qualified this by saying, 'I doubt I would have had personal conversations with her during that week'. He conceded that it was possible he contacted her after work 'every day', and it was possible also he had sent her text messages, and he conceded that he had put the toy dog on her desk. He conceded that he may have invited himself to join Ms Asnicar and Mr Leslie for drinks rather than them inviting him. When asked whether Ms Asnicar had given him 'signals' that she did not want after hours contact with him, he said 'No', but then qualified his answer with the comment that he just thought she was getting on with the job. He conceded he had said he felt torn between 'big brother' and 'the other end of the scale', though he said he meant by 'the other end of the scale' his being her boss, and being torn between helping her personally and doing the right thing by the business. When asked whether it had occurred to him that his comments could have been taken 'the wrong way', he said it had not, though he conceded the thought had occurred to him 'now'. When asked what was his response to Ms Allan raising the issue of Ms Asnicar's complaint with him, he said his general response was that 'there may have been some remarks taken out of context'. 83 Further, evidence as to a greeting card and lifts to work indicated a degree of collaboration between Ms Allan and Mr Floyd as to their evidence in respect of the nature and credibility of Ms Asnicar. Ms Allan stated (ibid) Ms Asnicar 'organised a personal "greeting card" email service for Mr Floyd's birthday', and attached an e-mail to Michael Floyd as Attachment 21 of her documents filed with the Tribunal on 1 April 2004. Ms Allan also stated (ibid) that Ms Asnicar 'also accepted offers for him to drive her to and from work, even though he lived in Baulkham Hills and she lived in Seaforth'. In her statement dated 8 April 2004, and when asked in the hearing about the card, Ms Asnicar said that a 'worm' virus had sent birthday cards to all the people on her e-mail address list. After perusing the document as to the birthday card virus tendered by Ms Asnicar (exhibit 8), the Tribunal accepts as credible Ms Asnicar's explanation, and finds that the birthday card sent by Ms Asnicar's e-mail is not indicative of her encouraging a personal relationship with Mr Floyd. As to the lift, Ms Asnicar stated in the hearing that on the occasion of a bus strike, Mr Floyd gave her two lifts from her husband's place of work at Ryde to Mondo Consulting, and these were the only occasions on which lifts were given by him. When questioned in the hearing about giving Ms Asnicar lifts to work, Mr Floyd agreed that this was the case. After considering the evidence, the Tribunal finds that the lifts accepted by Ms Asnicar from Mr Floyd are not indicative of her encouraging a personal relationship with Mr Floyd. 84 After considering all the evidence, the Tribunal rejects the evidence of Mr Floyd and Ms Allan as to Ms Asnicar's drinking habits, and propensity to sexually overt remarks, as confabulated and self-serving. The Tribunal also finds the evidence that Mr Floyd or Ms Allan had discussed the development of a sexual harassment policy before Ms Asnicar's complaints was fabricated by Mr Floyd and Ms Allan. The Tribunal notes the exaggeration in Ms Asnicar's evidence as to the move to Queensland. However, overall, the Tribunal found Ms Asnicar to be a credible, convincing witness. After considering all the evidence, the Tribunal prefers the evidence of Ms Asnicar to that of Ms Allan and Mr Floyd as to the interaction between each of them with Ms Asnicar. 85 After considering all the evidence, the Tribunal finds on the balance of probabilities that Ms Asnicar found Mr Floyd's comments to her unwelcome, and that the reason she did not tell him this was because, as she said at the hearing, she was unsure about the policies and procedures on sexual harassment at Mondo Consulting, she was 'worried about the repercussions' for her job, and she 'felt backed into a corner'. The Tribunal now turns to consider whether the facts as asserted by Ms Asnicar amount to unlawful sexual harassment and/or unlawful discrimination on the ground of sex within the Act. Relevant Law Sexual harassment 86 The Anti-Discrimination Act 1977 Section 22A provides that: 'a person sexually harasses another person if: the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated'. 87 The Anti-Discrimination Act 1977 Section 22B(1) provides that it is unlawful for an employer to sexually harass an employee or a person seeking employment with the employer. The Anti-Discrimination Act 1977 Section 22B(2) provides that it is unlawful for an employee to sexually harass 'a fellow employee or a person who is seeking employment with the same employer'. The Anti-Discrimination Act 1977 Section 22B(6) provides that '[i]t is unlawful for a workplace participant to sexually harass another workplace participant at a place that is the workplace of both those persons'. 88 Conduct will amount to sexual harassment if the conduct was in fact objectively sexual, 'unwelcome', that is, the aggrieved party did not invite the conduct, the conduct is regarded by the aggrieved party as undesirable, and the conduct is such that 'a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated'. 89 Conduct can amount to unlawful sexual harassment even where the person who commits the conduct at issue did not intend to sexually harass. In Johanson v Blackledge [2001] FMC 6, Driver FM, found 'The test here is objective and it does not matter whether the perpetrator intended to act in a sexual way or, indeed, was aware that he or she was acting in a sexual way'. 90 Where a person has made known that the conduct is unwelcome, it can be generally be concluded that the conduct is such that a reasonable person would have anticipated that the other person would be offended. 91 Ambivalence towards a person's conduct does not necessarily defeat a claim of sexual harassment where other elements such as youth and lack of awareness that sexual harassment is unlawful exist: Tenuyl v Delaney & Anor (1996) EOC 92-177. 92 The person who is the victim need not have articulated that the conduct is unwelcome, for it to be found to be unwelcome. For instance, in Johanson v Blackledge [2001] FMC 6, conduct was been found to be 'unwelcome' conduct of a sexual nature, despite the victim not actually stating this, where the act consisted of a butcher selling a bone which had been deliberately shaped to resemble a penis, where the female customer simply sought to buy an ordinary dog bone, and 'in no way sought or invited the provision of the dog bone shaped like a penis'. A declaration of love was found to be 'unwelcome' in circumstances where the aggrieved person reasonably apprehended that any protest may jeopardise her continued employment: Re: Susan Hall; Dianne Susan Oliver and Karyn Reid AND A&A Sheiban Pty Ltd; Dr Atallah Sheiban AND Human Rights and Equal Opportunity Commission No NG1185 of 1988 Fed No 65 Sex Discrimination, 20 FCR 217 (Hall & Ors v Sheiban 20 FCR 217) , per Wilcox J. Repeated references by an employer during work time to sexual matters and the employee's sex life which culminated in sexual advances were held to 'unwelcome': Roden v Thomas (1966) EOC 92-784. 93 Nevertheless, where a person has not made known that the conduct is unwelcome, the determination of whether the conduct is such that a reasonable person would have anticipated that the other person would be offended is more problematic. In a Victorian case, Hardy v Kelly (1991) EOC 91-369, a manager was found not to have sexually harassed his secretary with whom he had established a close friendship when he made certain statements and physical gestures towards her. The Victorian Board held that in the context of the friendship that existed between the complainant and the manager, the manager would not have realised that his behaviour was unwelcome. The complainant did not make clear to the manager that she did not welcome their private discussions, she actively participated in attending at the workplace after hours when the manager was there, and she allowed the manager to come to her home on numerous occasions. Vicarious liability for unlawful sexual harassment 94 The Anti-Discrimination Act 1977 Section 53 provides that employers have vicarious liability for unlawful acts of their employees; Section 53(1) states, 'An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.' 95 In Samuels Real Estate v Lamb & Anor (1998) EOC 92-923, James J said at 78, 148: 'Section 53 expressly provides that a principal or employer can authorise an act by an agent or employee, either before or after the doing of the act. Under s 53, the onus on the issue of authorisation is cast on the principal or employer; it is for the principal or employer to establish that it did not authorise the act of the agent or employee.' 96 It is not a defence to vicarious liability for sexual harassment that the employer or principal was not aware of the conduct or present when the conduct took place: Johanson v Blackledge [2001] FMC 6. 97 Nevertheless, if the employer or principal has had no notice of any potentially discriminatory, harassing or victimising behaviour, but upon learning of it, 'takes appropriate and immediate action in response including reasonable steps to prevent contravention of the Act', the employer is 'more likely' to have met the requisite statutory standard to avoid vicarious liability: Caton v Richmond Club Limited [2003] NSWADT 202, at para 143. In Judge v Cripps & Cripps Pty Ltd (1999) NSWADT11, the ADT found that where there is evidence of the employer acting to prevent a continuation of discriminatory conduct, the absence of a sexual discrimination policy, on its own, will not be sufficient to prove sexual discrimination was 'authorised' by the employer or principal. 98 If an employer or principal is made aware informally of potentially discriminatory, harassing or victimising behaviour, inactivity (such as not having any sexual harassment policies or procedures in place to discourage sexual harassment) may suffice to indicate that alleged sexual harassment was 'authorised'. In Shellharbour Golf Club v Wheeler [1999] NSW SC 224, Studdert, J found that the Respondent's action before and after the allegation were relevant in deciding whether the onus of proof had been discharged as to whether the conduct was authorised. In Caton v Richmond Club Limited [2003] NSWADT 202, the ADT stated at para 143, 'It is not enough to wait for a complaint before appropriate action needs to be taken by managers/employers. An employer's obligation to prevent discrimination, harassment and victimisation does not begin at the time that a formal complaint is made…' Defence against Vicarious Liability for unlawful sexual harassment - Employer has taken 'all reasonable steps' 99 The Anti-Discrimination Act 1977 Section 53(2) provides for a defence against vicarious liability where the employer has taken 'all reasonable steps' to prevent the contravention; Section 53(3) states, 'Despite subsection (1), the principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.' 100 This defence of all reasonable steps must be proved by the employer or principal on the balance of probabilities: Johanson v Blackledge [2001] FMC 6. 101 In D -v- Berkeley Challenge Pty Ltd [2001] NSWADT 92, an allegation of sexual harassment was made to the employer, a school, by a cleaner against the head cleaner in the school. The Tribunal found the school had an anti-discrimination policy in place, but had failed to take appropriate action pursuant to the allegation of sexual harassment. In that case, the Tribunal stated, 'It is not enough for an employer seeking to rely on the s53(3) defence to merely show that it had in existence a policy discouraging sexual harassment. The s53(3) defence makes clear that to escape liability the employer took all reasonable steps to prevent the employee from contravening the Act (our emphasis). Having a policy, however commendable, that is not implemented falls a long way short of establishing that all reasonable steps were taken. In the absence of any reasonable steps to discourage sexual harassment in the Lewisham workplace, other than the formal existence of a policy that was not implemented we conclude that the Respondent cannot rely on the s53(3) defence.' 102 What are 'reasonable' steps will vary with the size of the employer or principal: In Johanson v Blackledge [2001] FMC 6, Driver FM noted that 'it would be unrealistic to expect all employers, regardless of size, to adhere to a common standard of preventative measures'. In small businesses 'where a friendly and informal atmosphere often exists', there should be a clear policy statement so that such an atmosphere is not open to abuse: Bevacqua v Klinkert & Ors (No 1) (1993) EOC 92-515. For a large company, case law indicates that 'all reasonable steps' includes not only a policy, but also training of staff, especially managers, in the policy (Caton v Richmond Club Limited [2003] NSWADT 202, where the Respondent was a club), and communication of policies to senior management, and acceptance of responsibility by that management for promulgating the policies and for advising on remedial action to be taken (Evans v Lee & Anor (1996) EOC 92-822, where the Respondent was a bank). 103 No matter how small an employer or principal is, the case law indicates that taking 'all reasonable steps' requires the employer or principal to have taken active steps. That is, even with a very small business, such as the Tribunal finds Mondo Consulting to be, with only six staff at the time of the complaint, some steps must have been taken to prevent sexual harassment before the defence of 'all reasonable steps' can be demonstrated on the balance of probabilities. 104 The Tribunal notes that the Human Rights and Equal Opportunity Commission (HREOC) 'Sexual Harassment in the Workplace: A Code of Practice for Employers', is a useful guide (though not of course binding authority) as to what will constitute reasonable steps. The HREOC code, updated 24 March 2004, www.hreoc.gov.au website accessed by the Tribunal on 13 May 2004, notes that 'even very small businesses should have a simple written sexual harassment policy', and suggests, at 6.2.2, that steps to 'address sexual harassment and implement sexual harassment policy for 'very small businesses' may include: '6.2.2 Very small business… orally informing all employees that sexual harassment will not be tolerated under any circumstances and that disciplinary action will be taken against an employee who sexually harasses a co-worker, client or customer, contractor or other workplace participant; providing all staff with brochures and displaying information on noticeboards regarding sexual harassment; informing new staff that it is a condition of their employment that they do not sexually harass a co-worker, client or customer, contractor or other workplace participant; and keeping a diary note, which may later be useful as evidence, when staff is informed of the employer's policy on sexual harassment and when information is displayed and updated… Employees in very small business should be advised to make a complaint to the owners or employer if they are subjected to sexual harassment. Employees should be advised that they also have the right to approach their union, HREOC or their State or Territory anti-discrimination agency. Owners or employers in very small business are encouraged to attend relevant seminars or training sessions run by employer organisations, small business associations, industry associations, HREOC or their State or Territory anti-discrimination agency. Owners or employers in very small business are encouraged to obtain any available resources on discrimination, harassment and their legal responsibilities from employer organisations, small business associations, industry associations, HREOC or their State or Territory anti-discrimination agency.' 105 In Johanson v Blackledge [2001] FMC 6, Driver FM, noted in relation to the Respondent who owned a 'very small business', a butcher shop, where the owners claimed they had an oral policy, 'It is not enough to have a policy. One has to apply it.' Driver also noted (ibid), '[To establish the defence to vicarious liability of having taken] reasonable steps would include having effective sexual harassment policies in place, together with strategies of counselling and compensation or amelioration for the parties concerned…' Sex Discrimination 106 The Anti-Discrimination Act 1977 Section 24 (1) provides that discrimination on the ground of sex occurs where 'A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of sex if, on the ground of the aggrieved person's sex …the perpetrator: treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex…or requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex …comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply'. 107 The Anti-Discrimination Act 1977 Section 24 (1A) provides that for the purposes of Section 24(1)(a), 'something is done on the ground of a person's sex if it is done on the ground of the person's sex, a characteristic that appertains generally to persons of that sex, or a characteristic that is generally imputed to persons of that sex'. 108 In Aldridge v Booth (1988) EOC 92-222, Spender J considered the issue of whether sexual harassment amounted to sex discrimination, and concluded that 'It seems plain to me that sexual harassment is a form of discrimination…Put another way, [the Applicant] became the target of her superior's sexual desires because she was a woman, and was asked to bow to his demands as the price for holding her job'. 109 The Anti-Discrimination Act 1977 Section 25(2)(a) provides that it is unlawful for an employer to discriminate against an employee on the ground of sex 'by denying the employee access, or limiting the employee's access, to opportunities for promotional, transfer or training, or to any other benefits associated with employment'. 110 The Anti-Discrimination Act 1977 Section 25(2)(c) provides that it is unlawful for an employer to discriminate against an employee on the ground of sex 'by dismissing the employee or subjecting the employee to any other detriment'. Section 25(3) provides that Section 25(2) does not apply to employment, inter alia, 'where the number of persons employed by the employer, disregarding any persons employed within the employer's private household, does not exceed 5'. 111 The Anti-Discrimination Act 1977 Section 4 provides that if an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination under the Act (whether or not it is the dominant or substantial reason for doing the act), then for the purposes of the Act, the act is taken to be done for the reason of unlawful discrimination under the Act. Personal Liability for sex discrimination 112 The Anti-Discrimination Act 1977 Section 52 provides that 'It is unlawful for a person to cause, instruct, induce, aid or permit another person to an act that is unlawful by reason of a provision of this Act'. 113 In M v R Pty Ltd (1988) EOC 92 - 229 the then Equal Opportunity Tribunal, Graham DCJ presiding, listed the following four ways (adding that the list was not intended to be exhaustive) in which an employer could be found to have personally breached s 25(2) of the Act: '(1) Where the relevant discriminatory act or conduct is personally performed by the employer. (2) Where, in the case of an incorporated entity, the relevant discriminatory act or conduct is performed by a senior official whose conduct is to be identified as being that of the incorporated entity because he or she represents the "mind or will" of that entity. (3) Where the relevant discriminatory act is that of a person or persons whose duty it is to, or who customarily or usually has the function of, afford(ing) terms and conditions of employment to the employee alleging discrimination. (4) Where the relevant discriminatory act or conduct is that of employees not in any of the three earlier categories, but whose conduct is known to any of the persons in those categories and, by active condonation or inactivity, no prompt or adequate steps are taken by or on behalf of those in any of the first three categories to rectify the adverse working conditions thus afforded to the employee.' Constructive dismissal 114 In Colosimo and Banana Traders of Australia Pty Ltd t/as P W Chew & Co [2003] NSWIRComm 72, the Industrial Commission of New South Wales considered the issue of constructive dismissal. The Commission stated, 'It is trite to observe that a claim of unfair dismissal requires the Applicant to establish that a dismissal has actually occurred. Put another way, the onus rests with the Applicant to establish the factual basis of his/her dismissal. A dismissal (be it constructive or otherwise) has been defined as a "termination at the employer's initiative", or where the conduct or actions of the employer is the real and effective initiator of the termination of employment.' The oft quoted authority for this proposition is found in Allison v Bega Valley Council, (1995) 63 IR 68 at p72-p73: "…In some cases the circumstances in which the termination comes about makes it difficult to determine whether there was termination "by" the employer or the employee. There are cases where the courts, after analysis, have determined that although on the face of it an employee has resigned and brought about the termination of the contract of employment, in reality the conduct of the employer has compelled or unduly influenced the employee to resign… Although the term "constructive dismissal" is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation? It is obvious that a consideration of these matters must be made on a case-by-case basis and that an attempt to formulate general principles in the absence of particular facts will not assist in the overall determination of this issue…"' 115 A person who leaves their employment because of acts of discrimination or harassment against them by their employer or for which the employer is vicariously liable may be able to claim constructive dismissal: Chris Ronalds, Discrimination Law and Practice, The Federation Press, Sydney, 1998, p 58. Damages in sexual harassment and sex discrimination cases 116 Whatever the effect of the discriminatory conduct on the complainant, this must be compensated for by the discriminator: Australian and New Zealand Equal Opportunity Law and Practice, CCH Australia Ltd, 1996, p 72,232. 117 In Re: Susan Hall; Dianne Susan Oliver and Karyn Reid AND A&A Sheiban Pty Ltd; Dr Atallah Sheiban AND Human Rights and Equal Opportunity Commission No NG1185 of 1988 Fed No 65 Sex Discrimination, 20 FCR 217, the Full Federal Court considered a matter where a doctor had asked prospective employees at interview questions such as how often the interviewee had sex with her boyfriend, and after engaging the person, he proceeded to make sexual approaches to them including touching sexually. On the issue of damages for sexual harassment, Lockhart J, stated, '77. [The] circumstances in which the defendant's conduct takes place may themselves give rise to an element of aggravation. Sexual harassment in contravention of s. 28 of the Act, occurring within the relationship of employer and employee where the employer has power or authority over the employee and commonly has an ability to adversely affect the interests of the employee, would by its nature appear to involve an element of aggravation so as to give rise to the possibility of aggravated damages… 88. … In principle, advances by an employer, particularly if there is a series of them, all of which may have been tolerated by an employee out of sympathy or out of lack of choice, and each of which or all of which may have been tolerated by the majority of women, may nevertheless contravene s. 28 if they otherwise "vex and annoy" so as to amount to sexual harassment. Once the applicant's account of her reaction is accepted, if it is accepted, then damages fall to be assessed having regard to that reaction and not to the reaction which the majority of women might have had in similar circumstances.' 118 For aggravated damages, there needs to be an extra element of malevolence or spite or ill will: Chris Ronalds, Discrimination Law and Practice, The Federation Press, Sydney, 1998, p 197. The Tribunal's Findings as to the Law and Reasons for decision Was Mr Floyd's conduct 'sexual' within the Anti-Discrimination Act 1977? 119 In the hearing, Mr Macinnis asked the Applicant about each instance of Mr Floyd's alleged conduct, querying whether or not the conduct was sexual in nature; for example, was the conduct of telephoning Ms Asnicar and telling her he was on a beach near to her home while he knew her husband was away on business, sexual. Ms Asnicar responded that each instance on its own was not overtly sexual. Mr Macinnis then concluded that the conduct complained of, at its highest, could not fall with the Anti-Discrimination Act 1977 since it was not sexual. Ms Clegg's response to this submission was that the conduct alleged, if accepted by the Tribunal as true, must be looked at as a whole, and the whole conduct was of sexually harassing conduct of a junior employee while her husband was away. The Tribunal agrees that the conduct must be considered as a whole. 120 The Tribunal has found above that the statements as alleged by Ms Asnicar to have made by Mr Floyd were in fact made by him. 121 The Tribunal notes that Mr Floyd's comments to Ms Asnicar at Mondo Consulting were made about Ms Asnicar personally, indicated that he found her attractive and if she was not married, he would want a personal relationship with her, and were made in a context of her husband being away, Mr Floyd visiting a beach near her home while she alone at home, and Mr Floyd sitting next to her in their meetings alone at work, rather than with some personal space between them. 122 After considering the statements and actions as a whole, the Tribunal finds that Mr Floyd's conduct was 'sexual' within the meaning of the Anti-Discrimination Act 1977. Was Mr Floyd's conduct such that it have been anticipated by a reasonable person that Ms Asnicar would be offended, within the Anti-Discrimination Act 1977? 123 The Tribunal has found above in para 87 that Mr Floyd's comments to Ms Asnicar in the relevant period were unwelcome to her. 124 As to the question of whether Mr Floyd's conduct was such that a reasonable person would have anticipated that Ms Asnicar would be offended, the Tribunal notes that on the one hand, this is complicated by the following facts: First, Ms Asnicar did not tell Mr Floyd his comments were unwelcome to her. Secondly, the working relationship between Ms Asnicar and Mr Floyd was lengthy and had informal aspects, including their habit of conducting after hours telephone calls about work. Thirdly, Ms Asnicar left Management Recruiters to take a job at Mondo Consulting after Mr Floyd left Management Recruiters and commenced working at Mondo Consultants, which could be perceived as her condoning his tendency to make sexual remarks about women. Fourthly, Ms Asnicar's response when asked directly by Mr Floyd on 18 March 2003 and again on 20 March 2004 whether anything was wrong, was that 'nothing was wrong', and her statement to Mr Floyd after commencing work at Mondo Consultants that 'I love working with you and Rod', could also be seen as indications that Ms Asnicar would not be offended by Mr Floyd's personal remarks to her. 125 Last, the question of whether the conduct was such that a reasonable person would have anticipated that Ms Asnicar would be offended, is made more complex by the fact that Ms Asnicar is not a person who overtly would find it hard to be assertive and say words to the effect of, 'stop this unacceptable conduct'. Nor, according to her own evidence at the hearing, was she a person who was offended by sexual comments per se; she said she 'wasn't offended' when sexual remarks were made about others by Mr Floyd at Management Recruiters. 126 On the other hand, the Tribunal notes that a reasonable person would also consider that even a mature, married female, familiar with the work colleague who is allegedly harassing her, who can tolerate sexual comments when they are not about her, may find it difficult to be assertive against the work colleague if the alleged harasser is her superior (as Mr Floyd was), elder (as Mr Floyd was), and she is in a smaller, new workplace and in fear of losing her job (as Ms Asnicar asserts she was). 127 The Tribunal also notes that the present case is distinguishable from the situation in Hardy v Kelly (1991) EOC 91-369 since in this case, the Tribunal accepts the relationship between Mr Floyd and Ms Asnicar was not a close friendship, nor had Ms Asnicar allowed Mr Floyd to come to her home. 128 After considering the evidence, the Tribunal finds that a reasonable person could have anticipated that Ms Asnicar would find the conduct and comments offensive. Is Mondo Consulting vicariously liable for the unlawful sexual harassment by Mr Floyd? 129 The Tribunal notes that the evidence indicates that before Mr Floyd commenced working for Mondo Consulting, the staff consisted of Ms Allan and two other women. The Tribunal also notes that in the hearing, Ms Allan gave evidence that in the period after she had established her consultancy until Mr Floyd, Ms Asnicar and Mr Leslie commenced at Mondo Consulting, she had not encountered any complaints of sexual harassment and/or sex discrimination, which is not altogether surprising given her company comprised of herself and only two employees, both females. The Tribunal also notes that the Anti-Discrimination Act 1977 provides for some exception from sex discrimination prohibitions in the case of a company employing under 5 people (see Section 25(3)), such as was Ms Allan's business before Mr Floyd and his former colleagues, Ms Asnicar and Mr Leslie, entered employment there. Nevertheless, the Tribunal notes that anti-discrimination law is wider than only prohibitions of sexual harassment and sex discrimination; it also covers discrimination on other grounds including age and disability. Further, the obligations imposed upon employers under the Anti-Discrimination Act 1977 are non-delegable: M v R Pty Limited and Another (1988) EOC 92-229. 130 To avoid vicarious liability for the actions of Mr Floyd, Mondo Consulting must prove on the balance of probabilities that it took all reasonable steps to avoid unlawful discrimination occurring in its workplace: Johanson v Blackledge [2001] FMC 6. While what will constitute reasonable steps will vary with the size of the employer or principal (ibid), no matter how small an employer or principal is, the case law indicates that taking 'all reasonable steps' requires the employer or principal to have taken some active steps. That is, even with a very small business, such as the Tribunal finds Mondo Consulting to be, with only six staff at the time of the complaint, some steps must have been taken to prevent sexual harassment before the defence of 'all reasonable steps' can be demonstrated on the balance of probabilities. 131 For Mondo Consulting, Ms Allan submitted that her response to Ms Asnicar's complaint was prompt and reasonable. She telephoned colleagues for advice as to how to manage the situation, she spoke with Mr Floyd, she asked a former colleague, Ms Fries-Wilson, to intervene, and she developed a policy and undertook the task of training her staff in the content of the policy. 132 As to 'all reasonable steps' taken before the alleged sexual harassment took place, the Tribunal notes that Ms Allan conceded in the hearing that Mondo Consulting had no sexual harassment policy or procedures in place before the alleged acts took place (nor, she said, did it have policies or procedures in other areas of its legal obligations towards its staff, including discrimination in general, and occupational health and safety). The Tribunal notes that when she established her business Mondo Consulting, part of her legal obligation in so doing was to ensure that her employees were protected from unlawful discrimination, and while having an anti-discrimination policy in place does not on its own fulfil this obligation, without ensuring the policy is actually known and adhered to, it is clear that before the complaint of Ms Asnicar, Mondo Consulting did not meet its obligations in this regard, nor provide an environment which protected its employees from discrimination. 133 As to the steps taken by Mondo Consulting and Ms Allan after the alleged harassment took place, the Tribunal notes that Ms Allan stated that she took the complaint seriously, she consulted others as to what she should do, and she took swift action by meeting with Mr Floyd, getting Ms Fries-Wilson to investigate the allegations, and developing a sexual harassment policy and training. 134 The Tribunal accepts that Ms Allan initially considered the complaint seriously, acted swiftly, and consulted others with more business experience. However, the Tribunal notes it is not sufficient on its own to seriously and swiftly consult others as to a sexual harassment claim if those others have no demonstrated sexual harassment claim expertise. 135 As to Ms Allan meeting with Mr Floyd, the Tribunal finds that the meeting of Ms Allan with Mr Floyd could have constituted a reasonable step, but in fact it did not because the evidence of both Mr Floyd and Ms Allan indicates that the presence of Ms Allan's one year old, and the setting (a café), precluded any serious discussion of the claims made by Ms Asnicar. In Mr Floyd's words at the hearing, during the 'meeting', Ms Allan's son was 'wreaking havoc'. 136 As to whether the engagement of Ms Fries-Wilson to investigate the complaint constituted a reasonable step, the Tribunal notes that the engagement of an independent female professional with expertise and competence in sexual harassment cases to investigate and perhaps mediate the matter could constitute a 'reasonable step'. 137 The Respondent's evidence as to why she selected Ms Fries-Wilson to intervene in a sexual harassment case, was that Ms Fries-Wilson was a woman, she was independent, she was available at short notice, and Ms Allan had a good impression of Ms Fries-Wilson from observing the work of Ms Fries-Wilson as a consultant for Morgan & Banks Ltd, counselling senior managers who had been made redundant. Mr Macinnis submitted to the Tribunal that Ms Fries-Wilson was independent, had human resources expertise and she was available immediately. 138 However, the Tribunal notes that the Curriculum Vitae (cv) of Ms Fries-Wilson does not indicate she has any expertise in sexual harassment matters. Her cv indicates that she gained a BA from the Central Michegan University in 1978, and in 1993, she completed a 'Train the trainer, Introduction to project management course' at the Australian Institute of Management. She has worked as an assistant manager and travel sales consultant in USA for travel agencies, as a manager for the Flight Centre, for Morgan & Banks Ltd from 1997 to 2000 as a 'career transition consultant and recruitment consultant', and her present position is with 'The Next Step', recruitment consultants, recruiting and selecting senior executives 'within the discipline of human resources'. 139 The Tribunal notes that the Statutory Declaration dated 29 March 2004 by Ms Fries-Wilson states that she was called in upon 'very short notice' to 'provide independent support/consultation to both Ms Asnicar and Mr Floyd', and does not state any expertise in unlawful discrimination matters by Ms Fries-Wilson. 140 The Tribunal has above accepted as credible the evidence of Mr Floyd and Ms Asnicar as to the content of their respective interviews with Ms Fries-Wilson. 141 The Tribunal notes that there was no oral evidence from Ms Fries-Wilson either as to her expertise or as to her communications with Ms Allan, Ms Asnicar or Mr Floyd, despite the Tribunal making it clear that it would be useful to hear oral evidence from Ms Fries-Wilson. 142 After considering the evidence as to the content of the meeting between Ms Fries-Wilson and Ms Asnicar, the Tribunal finds that the comments of Ms Fries-Wilson as to the attractiveness of the Applicant, Ms Asnicar telling her husband, and the flirting example appear to be misplaced in a session to investigate at arms-length an allegation of sexual harassment, and are indicative of lack of expertise of Ms Fries-Wilson in the area of investigation of sexual harassment. 143 Mr Macinnis submitted that it was the fault of Ms Asnicar, rather than of Mondo Consulting, that the process with Ms Fries-Wilson didn't succeed since Ms Asnicar had not complained to Ms Allan (or to Ms Fries Wilson) about the appropriateness of the process of managing her complaint, and Ms Asnicar did not allow the process to continue (by not keeping her second appointment with Ms Fries-Wilson and by resigning). The Tribunal notes that in effect, Ms Asnicar did indicate to Ms Allan that she was concerned about the way Ms Fries-Wilson was approaching the complaint; she did this by refusing to attend a further session with Ms Fries-Wilson. In any case, the Tribunal finds that though the test is not whether the step(s) taken were perfect, nevertheless, it is not sufficient to satisfy the 'all reasonable steps' test for an employer to simply take any action (such as getting a mediator, no matter how inexpert in the particular area); the action(s) taken must be capable of being found to be 'all reasonable steps'. 144 After considering all the evidence, the Tribunal finds that the engagement of Ms Fries-Wilson does not constitute a reasonable step, since she lacked training and skills to investigate or to mediate a claim of sexual harassment, and the evidence as to her actual handling of the matter demonstrates her lack of expertise as to handling of sexual harassment allegations. 145 As to the steps taken after the allegations made by Ms Asnicar of unlawful discrimination, the Tribunal accepts that subsequent to Ms Asnicar's leaving the company, Ms Allan developed a policy and instituted some basic training. The Tribunal notes that at the hearing on 14 April 2004, Ms Allan stated she herself, rather than a specialist in anti-discrimination policy, developed a policy document on sexual harassment policy (two pages), and she herself gave a training session on sexual harassment which consisted of 'nearly an hour'. The Tribunal accepts that in a very small firm, if the policy is given to new staff on commencement and the training is on-going and competent, this may constitute 'all reasonable steps' as to any future allegations of unlawful discrimination, though the Tribunal notes too that the HREOC 'Sexual Harassment in the Workplace: A Code of Practice for Employers' recommends that even very small businesses take further steps such as providing all staff with brochures and displaying information on noticeboards regarding sexual harassment. However, since these steps of developing a policy and training were taken after Ms Asnicar left the employment of Mondo Consulting, the Tribunal finds that on the balance of probabilities, they do not constitute the taking of 'all reasonable steps' such as would negate the vicarious liability of Mondo Consulting towards Ms Asnicar for the unlawful discrimination by Mr Floyd. 146 The Applicant stated in writing and at the hearing that when she told Ms Allan about the sexual harassment claims, Ms Allan said she would not have to work with Mr Floyd until the situation was resolved. Ms Clegg submitted that Ms Allan requiring Ms Asnicar to work with Mr Floyd while the matter was unresolved precluded a defence of 'all reasonable steps'. Ms Allan denied, in writing and at the hearing, stating that Ms Asnicar would not have to work with Mr Floyd while the matter was being resolved, though she conceded at the hearing it may have been better if she had taken this course. Mr Macinnis submitted that in any case, it would be too stringent a requirement for small business if every time sexual harassment was alleged, the business had to suspend the alleged harasser until the situation was resolved. 147 The Tribunal accepts that it would be a burden on any business, especially small businesses, if every time an allegation of sexual harassment was made, the business was required to suspend the alleged harasser while investigations were conducted. However, the Tribunal finds that in some cases, the nature of the allegations are so serious, and/or the working environment may be so small, that the only reasonable step which can be taken by the employer to avoid possible further psychological damage being done to the alleged victim will be to assure the alleged victim that s/he will not have to work with the alleged harasser at least until the situation is resolved, irrespective of (and in some cases, by reason of) how small the business is, how small the employer is, and how great an impact this will have on their business. 148 Whether the alleged victim should be assured that s/he will not have to work with the alleged harasser until the complaint is resolved is a matter of degree, to be determined in the circumstances of each case. 149 In this case, the Tribunal notes Ms Asnicar's evidence that she hid in the toilet for much of the day she was in the office with Mr Floyd after she made the complaint to Ms Allan. However, the Tribunal also notes Ms Asnicar did not leave the office when Ms Fries-Wilson invited her to do so because after she said she had work to do, she was not invited again to leave. After considering all the evidence, the Tribunal considers that while it may have been more comfortable for Ms Asnicar if she had not been required to work with Mr Floyd, the nature of her allegations was not prima facie so serious, and Ms Asnicar's overt reaction to those allegations was not so extreme, as to make her not working with Mr Floyd a necessity before the reasonable steps defence can be satisfied. 150 The Tribunal has some sympathy for Ms Allan. Before the advent of Mr Floyd, she had a small company Mondo Consulting, with two female staff, which apparently operated harmoniously. She engaged Mr Floyd to enable her to spend more time with her young child, and with the brief to manage the company, develop working policies where necessary under legislation, and to expand the activities of the company. However, after Mr Floyd joined the company, Ms Allan soon found herself with a conflict, and soon after that, the three new staff (Mr Floyd, and Mr Leslie and Ms Asnicar who Mr Floyd had introduced to the company), left the company. 151 Nevertheless, Ms Allan, in establishing Mondo Consulting, assumed the responsibility for complying with the legislative duties of the company. After considering all the evidence, the Tribunal finds that Mondo Consulting is vicariously liable for the unlawful sexual harassment by Mr Floyd and it has not proved on the balance of probabilities that it did not authorise the sexual harassment and has not proved on the balance of probabilities that it took all reasonable steps to prevent its employee, Mr Floyd, from contravening the Act. Is Mondo Consulting liable for sex discrimination? 152 The Applicant claimed (document filed by the Applicant with the Tribunal 23 April 2004) that she suffered sex discrimination under Section 25(2)(c) of the Anti-Discrimination Act 1977. She claimed her being required by Mondo Consulting to work with Mr Floyd after she made a sex harassment claim against him was sex discrimination because more women than men have a 'tendency' to feel 'uncomfortable', intimidated', 'powerless', 'freaked out', and guilty', when 'subjected to harassment by a man and/or after having made a complaint about harassment by a man'. 153 The Tribunal notes that the Applicant submitted no empirical evidence in support of her claim that a higher proportion of women than men may feel 'uncomfortable' or 'freaked out' by having to work with an alleged sexual harasser before the matter is resolved. The Tribunal finds this is an interesting proposition and is tempted to consider the issue of what factors make a person feel uncomfortable, intimidated, powerless and guilty in a sexual harassment situation. Could age and seniority of position be factors as significant as gender? 154 However, the Tribunal finds that it is unnecessary to determine whether a woman being required to work with an alleged harasser amounts to sex discrimination because the Tribunal finds that the unlawful sexual harassment itself by Mr Floyd amounts to discrimination on the ground of sex: Aldridge v Booth (1988) EOC 92-222. 155 The Anti-Discrimination Act 1977 provides for personal liability under Section 52 which states, 'It is unlawful for a person to cause, instruct, induce, aid or permit another person to an act that is unlawful by reason of a provision of this Act'. 156 In this case, the unlawful conduct in this case occurred in the course of work; this is clear from the evidence of both Mr Floyd and Ms Asnicar that, with the exception of the conversation conducted after social drinks on 11 March 2002, the conversations and conduct which offended Ms Asnicar were either at work (for example, the toy dog), or occurred in the course of conversations about work or work performance. 157 The Tribunal also notes the evidence of both Ms Allan and Mr Floyd at the hearing was that Mr Floyd was engaged as general manager of Mondo Consulting. 158 After considering the evidence, the Tribunal finds that Mondo Consulting is personally liable for sex discrimination by reason of its permitting the sexual discrimination by Mr Floyd to take place. Alternatively, Mondo Consulting is personally liable for sex discrimination because the person who carried out the sex discrimination was Mr Floyd, and Mr Floyd was a senior official of Mondo Consulting who constituted the 'mind and will' of the company and whose actions as a senior official of Mondo Consulting were the actions of the company itself: M v R Pty Ltd (1988) EOC 92 - 229. Is Mondo Consulting Liable for Constructive Dismissal? 159 As to Ms Asnicar's claim of constructive dismissal, the onus rests with the Applicant to establish the factual basis of her dismissal: Colosimo and Banana Traders of Australia Pty Ltd t/as P W Chew & Co [2003] NSWIRComm 72. 160 The Applicant claimed that though she resigned in writing effective when her e-mail was received on 28 March 2002, she was constructively dismissed on 28 March 2002 because of Mr Floyd's sexual harassment which Mondo Consulting failed to prevent, and Mondo Consulting's failure to adequately and genuinely deal with her complaint which left her with no choice but to resign. 161 The issue to be established is whether Mondo Consulting behaved 'in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation': Allison v Bega Valley Council, (1995) 63 IR 68 at p72-p73. 162 Ms Asnicar and Ms Allan agreed that a letter of resignation was sent by Ms Asnicar and received by Ms Allan on 28 March 2004. Under the contract, a month's notice should have been given, but Ms Asnicar resigned effective from 28 March 2002, and since Mondo Consulting paid her up to 2 April 2002, the Tribunal finds that irrespective of which party initiated the resignation, Mondo Consulting waived their right under the contract to one month's notice from Ms Asnicar. The Tribunal finds that Ms Asnicar's employment at Mondo Consulting was terminated on 28 March 2002. 163 What Ms Asnicar and Ms Allan do not agree on is the issue of who was the real and effective initiator of the termination of employment. Ms Asnicar claimed she resigned because of the sexual harassment and because Mondo Consulting was not genuinely concerned about her complaint and she had no other option but to resign. Ms Allan claimed that she had not initiated the dismissal, and that she would have liked to have Ms Asnicar continue to work for her. She claimed that she would have been happy to have Ms Asnicar return to work on 28 March 2002 and even as late as 3 May 2002 after Mr Floyd had left Mondo Consulting, and Ms Asnicar not so returning indicates she voluntarily resigned from Mondo Consulting. 164 As to Ms Allan's claim that she thought Ms Asnicar wanted to resign on 26 March 2002, the Tribunal notes her concessions in the hearing that on 26 March 2002, 'It didn't seem like [Ms Asnicar] had absolutely made her mind up she would never come back', and that on 28 March 2002, she asked Ms Asnicar on 28 June 2002 to resend her resignation. After considering all the evidence, the Tribunal finds that on 28 March 2002, Ms Allan offered for Ms Asnicar to return to work for one day only. 165 As to Ms Allan's claims that she would have accepted Ms Asnicar back to work if Ms Asnicar wanted to return on 3 May 2002, the Tribunal notes that the letter dated 3 May 2002 from Ms Allan's solicitors states, 'On 26 March 2002, Ms Allan did ask Ms Asnicar to return to work for one more day, a day Ms Allan made clear Mr Floyd would not be in the office, in order to assist with some transition work'. The Tribunal notes that Ms Allan said in the hearing that this was a mistake, that she wanted the Applicant simply to return to work. However, the Tribunal notes that this offer to return for one day only is consistent with Ms Asnicar's evidence that when she stated on 26 March 2002 that she wanted to resign because of the sexual harassment, Ms Allan's next contact was, on 28 March 2002, to ask Ms Asnicar where her resignation e-mail was, which, Ms Asnicar claimed at the hearing, left her feeling that Ms Allan wanted her resignation. Also, the Tribunal notes that Ms Allan said in evidence at the hearing that she had read and amended the letter on some points, the amendments were evident in the copy of the letter before the Tribunal, and these amendments did not include deletion of qualification that what was offered by Ms Allan was to return to work for one day only. The Tribunal also notes that the said letter dated 3 May 2002 includes an 'alternative scenario' of why Ms Asnicar left Mondo Consulting which indicates that Ms Asnicar resigned inter alia because she embarrassed and sensitive subsequent to Mr Floyd and Mr Leslie becoming 'aware of her problem with drinking on 11 March 2002'. After considering all the evidence, the Tribunal finds that the letter dated 3 May 2002 did not contain a genuine offer for Ms Asnicar to return to work and it was reasonable for Ms Asnicar not to respond to this offer. 166 After considering all the evidence, the Tribunal finds that Ms Asnicar's oral resignation made on 26 March 2002 was made because of Mr Floyd's conduct and comments and Mondo Consulting's handling of her complaint. The Tribunal finds that Ms Allan knew of the reasons for Ms Asnicar's oral resignation on 26 March 2002. The Tribunal finds that the oral resignation was not effective to terminate the contract since it was not in writing. The Tribunal finds that the first effective resignation was the resignation sent by Ms Asnicar by e-mail on 28 March 2002 since this was in writing, and received by Ms Allan. The Tribunal finds that the resignation dated 28 March 2002 was prompted by Ms Allan's request that Ms Asnicar return for one day only and by Ms Allan's request for Ms Asnicar to re-send the earlier resignation. 167 The Tribunal notes the Respondent's arguments in the hearing that Ms Asnicar could have taken some action, such as sending the letter she wrote to Mr Floyd but did not send, to make it clear sooner that she objected to Mr Floyd's conduct, or stating to Ms Allan her objections to the complaint process and giving Ms Allan more opportunity to satisfactorily resolve the matter. However, the Tribunal also notes Ms Asnicar's explanation of her lack of action on her part was that she did not do these things because she was fearful of losing her job, and/or of not getting work again in the industry if she complained, and the Tribunal has accepted above this explanation as credible. 168 After considering all the evidence, the Tribunal finds, on the balance of probabilities, that it was the actions of Mondo Consulting which were the real and effective initiatives for Ms Asnicar's resignation, not the actions of Ms Asnicar, and that, the effective resignation of 28 March 2002 amounted to constructive dismissal. Damages 169 The Tribunal has found above that Ms Asnicar was subjected to sexual advances by Mr Floyd, unwelcome to her and such that a reasonable person having regard to all the circumstances would have anticipated that she would be offended or intimidated, contrary to the Anti-Discrimination Act 1977 Sections 22A and 22B. The Tribunal has found above that Mondo Consulting is vicariously liable for the sexual harassment by its employee Mr Floyd, since it does not have the benefit of the defence in Anti-Discrimination Act Section 53, not having taken all reasonable steps to prevent the sexual harassment from happening. 170 The Tribunal has found above that the unlawful sexual harassment by Mr Floyd amounts to discrimination on the ground of sex in breach of the Anti-Discrimination Act 1977 Section 24. 171 The Tribunal has also found above that Ms Asnicar was constructively dismissed. Accordingly, the Tribunal finds that she can claim damages for her loss from the constructive dismissal either as economic loss arising from the sexual harassment, or alternatively, as constructive dismissal under the Anti-Discrimination Act Section 25(2)(c). 172 In the Amended Points of Claim dated 8 April 2004, Ms Asnicar claimed that as a result of the sexual harassment, she suffered 'hurt, humiliation, distress and loss of faith in the employer/employee relationship along with other economic loss'. As a result of the constructive dismissal, the Applicant claimed she was unemployed and without income for three weeks, the alternative employment she found was only temporary and lasted one month, and thereafter, the Applicant worked only on a 'casual/temporary basis'. Ms Asnicar sought $7500 compensation for 'hurt, humiliation, distress and loss of faith in the employer/employee relationship', and damages for economic loss of $8,654 plus interest from 2 April 2002 to the date of decision, being 10 weeks of the Applicant's gross pay to compensate for the Applicant being without income for approximately 5 of the 6 months following the termination of her employment. Additionally, the Applicant sought costs under Section 114(2) of the Act. 173 As to damages, the Tribunal notes that the Anti-Discrimination Act 1977 Section 113 provides that the Tribunal may order the Respondent to pay damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the Respondent's conduct. 174 In assessing damages, the Tribunal compared the position in which Ms Asnicar might have been expected to be if the discriminatory conduct had not occurred with the situation in which she was placed by reason of the conduct of the Respondent: Hall & Ors v Sheiban 20 FCR 217. 175 When Ms Asnicar commenced work at Mondo Consulting, it is not disputed that she did so pursuant to parties signing a contract of employment which stipulated, under the heading 'Offer of Employment', that what was offered by Mondo Consulting was 'a contract role for a period of three months and then reviewed by the parties'. Termination was to be 'by one month's notice in writing by either the employee or the company'. 176 If not for the sexual harassment and its related consequences, Ms Asnicar would presumably have worked for three months for Mondo Consulting and either stayed or left, depending on the results of the review provided for after three months. She would have avoided the distress she suffered and she would not have needed counselling. 177 The Tribunal also has found that Ms Asnicar was constructively dismissed by Mondo Consulting on 28 March 2002, thereby being denied the opportunity to complete her three month contract which otherwise would have finished on 11 May 2002 and/or the benefit of one month's notice which was provided for under the contract if the employer wanted to dismiss the Applicant under the contract dated 8 February 2002. The Tribunal notes that Mondo Consulting paid Ms Asnicar all salary and entitlements up to and including 2 April 2002. After considering all the evidence, the Tribunal awards damages for economic loss of $4988, being $4808 for salary and entitlements from 2 April 2002 to 11 May 2002, and $180 compensation for the two counselling sessions undertaken by Ms Asnicar. 178 The Tribunal has not awarded damages for future economic loss to cover future counselling sessions since while the Applicant indicated that the counselling sessions had benefited her, and that she discontinued only because of financial constraints, the Applicant presented no evidence to the Tribunal as to the extent and cost of appropriate counselling, if any, which would be needed to assist her in the future. 179 As to compensation for hurt, humiliation and loss of faith in the employee/employer relationship, the Tribunal is mindful that damages awarded must have regard to Ms Asnicar's reaction and not to the reaction which the majority of women might have had in similar circumstances: Hall & Ors v Sheiban 20 FCR 217, Federal Court of Australia. 180 The Applicant's account of her reaction was that she was distressed, she needed sleeping tablets and referral to a counsellor, she felt she had to resign, and she had difficulty working again as a personal assistant and difficulty working for males. 181 It is always difficult for a decision-maker to assess the extent of claims to personal reactions and emotions, especially where, as here, the applicant exaggerated to an extent her evidence as to the impact of the distress (in her evidence there that her move to Queensland was mainly because of her emotional state which arose from the sexual harassment) and offered no objective corroborative evidence apart from a doctor's note that sleeping tablets were prescribed to support the applicant's claim of distress. 182 Nevertheless, overall, the Tribunal found the applicant at the hearing to be a convincing witness who appeared to be telling the truth as to her claims to have been offended and distressed by Mr Floyd's comments and conduct, and the handling of her complaint by Mondo Consulting. The Tribunal, above, has accepted this evidence as credible. The Tribunal accepts that the Applicant genuinely was hurt, humiliated, needed sleeping pills and counselling, and continues to feel distressed, at the conduct of Mr Floyd and the management of her complaint by Mondo Consulting. 183 After considering all the evidence, the Tribunal awards the amount of $5000 as damages for hurt, humiliation and loss of faith in the employee/employer relationship. 184 Given the sexual harassment took place in the workplace, the Tribunal has considered awarding aggravated damages (ibid) against Mondo Consulting. The Tribunal is mindful that the sexual harassment and discrimination in this case, while it was not so trivial as to be permissible even in a very small workplace, nevertheless, was not of the most serious kind; as Ms Clegg put it in her submissions, it is not the 'greatest case' of sexual harassment to have been considered by the Tribunal. Additionally, the Tribunal notes that the Applicant was not a person who Mondo Consulting could have reasonably known to be an overtly vulnerable person, given she is a 31 year old married female, who had worked in a workplace for some years and who could therefore be assumed to be aware of her right not to be sexually harassed (and indeed, was so aware from her time working at Management Recruiters). After considering all the facts, the Tribunal does not consider that aggravated damages are warranted. 185 The Tribunal notes that Section 53(2) provides that if both the principal and the agent or employee who did the act are subject to any liability arising under the Act in the respect of the doing of any act, they are jointly and severally subject to that liability. Since the Applicant has received $5000 from Mr Floyd in damages (Deed of Release, Exhibit 2), the Tribunal orders that Mondo Consulting pay Ms Asnicar the sum of $4988. 186 As to costs, the Tribunal notes that the Anti-Discrimination Act 1977 Section 114(1) provides that except insofar as is provided in Section 114(2), each party to an inquiry shall pay his or her own costs. Section 114(2) provides that where the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs and security for costs, whether by way of interim order or otherwise, as it thinks fit. In this case, the Tribunal can see no justification for ordering Mondo Consulting to pay the costs of Ms Asnicar (or vice versa). ORDERS 187 The Tribunal makes the following Orders: 1. That the Respondent pay to the Applicant the sum of four thousand nine hundred and eighty eight dollars ($4988.00) damages for economic loss and for hurt, humiliation and loss of faith in the employee/employer relationship. 2. That each party pay their own costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.